The U.S. Constitution doesn't prevent California from forcing pork producers based in other states from abiding by California agricultural standards, if they wish to sell their chops, bacon and other pork products in the Golden State, a sharply divided U.S. Supreme Court has ruled.
Supreme Court justices in dissent, however, warned the decision will now empower other states, potentially in reprisal, to seek to use state laws to undemocratically bend the rest of the country to their will, creating an economic, legal and regulatory contest among the states that runs counter to the vision held by the Founders for the nation.
U.S. Supreme Court Justice Brett Kavanaugh
| oyez.org
That law, enacted in 2019, would prohibit the sale of any pork meat products in California, unless the pork came from pigs raised in conditions in which pregnant hogs are given at least 24 feet of space and have the ability to stand up and turn around in their pens.
The law was approved by voters in 2018, and was billed as promoting the humane treatment of hogs being raised for meat.
Pork producers have warned the law would imposed draconian standards on farm operations and raise prices significantly for pork not only in California, but across the country, by decreasing the ability of pork supply to meet demand at current prices.
But more significantly, they accused California of violating the U.S. Constitution’s so-called Commerce Clause, which generally forbids one state from interfering with commerce in other states, or prohibiting the exchange of goods across state lines.
In this case, the pork producers noted the law would give California state officials extra-territorial powers over pork production operations in other states, even though California produces very little of the U.S. pork supply. For instance, the law would empower California to dispatch its state inspectors to hog farms in other states, to ensure California law is being followed, on the presumption that pork produced at those farms outside California is then being comingled with the pork sold in California, the U.S.’s most populous state and largest state economy.
The National Pork Producers Council and American Farm Bureau Federation filed suit in California federal court in 2019, challenging the state’s power to enforce the law beyond its borders in such a manner.
The lawsuit was dismissed by federal courts in California, including the Ninth Circuit.
The case has drawn attention from throughout the nation and the world, as any decision could serve to rewrite the rules under which state laws and regulations interact with one another under America’s federal constitutional system. Particularly, business interest groups and others have said they worry allowing California to enforce Prop 12 could lead to a cacophony of state laws across the country, competing to assert one state’s dominance over their neighbors, or perhaps the entire country.
They worry other large states, in particular, could follow California’s lead, seeking to leverage their population and market size to lean on America’s corporations and producers to bring about desired economic and societal changes, against the will of voting majorities in other states, or perhaps even the majority of the country as a whole.
In the sharply divided opinions issued May 11, the high court agreed to allow California to enforce the law, as written.
Writing for the overall majority, Justice Neil Gorsuch said the challenge to Prop 12 would have required the court to wield the Commerce Clause to “fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders.”
“While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” Gorsuch wrote.
Gorsuch was joined in the overall majority opinion by fellow conservative justices Clarence Thomas and Amy Coney Barrett, and liberal justices Sonia Sotomayor and Elena Kagan.
Gorsuch said under America’s federalist system, states should be free to use democracy to decide for themselves what regulations to put in place, unless those laws and regulations are directly overruled by federal law or the U.S. Constitution.
If pork producers don’t like California’s law, they will need to petition the U.S. Congress to enact a less stringent national standard, he said.
“But so far, Congress has declined the producers’ sustained entreaties for new legislation,” Gorsuch wrote. “And with that history in mind, it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshalling a majority of elected representatives across the street (in the U.S. Capitol).”
In dissent, Chief Justice John Roberts was joined by conservative justices Samuel Alito and Brett Kavanaugh, with liberal Justice Ketanji Brown Jackson.
Roberts said he believes Prop 12’s effect goes beyond California’s own market, and becomes an unconstitutional extra-territorial imposition of California’s law upon the rest of the country, which never had an opportunity to vote on California’s law.
Roberts noted the law will force pork producers in other states to spend as much as $350 million to come into compliance with California’s law if they wish to continue selling their products in California.
“Proposition 12 may not expressly regulate farmers operating out of State,” Roberts wrote. “But due to the nature of the national pork market, California has enacted rules that carry implications for producers as far flung as Indiana and North Carolina, whether or not they sell in California.”
In a separate dissent, Kavanaugh further warned of the implications of the reasoning adopted by Gorsuch and the majority.
He said the authors of the Constitution would not have recognized a system under which the country’s largest state would be empowered to write laws and regulations that all but bind the rest of the country.
“Through Proposition 12, … California has tried something quite different and unusual,” Kavanaugh wrote. “It has attempted, in essence, to unilaterally impose its moral and policy preferences for pig farming and pork production on the rest of the Nation. It has sought to deny market access to out-of-state pork producers unless their farming and production practices in those other States comply with California’s dictates. The State has aggressively propounded a ‘California knows best’ economic philosophy – where California in effect seeks to regulate pig farming and pork production in all of the United States.
“California’s approach undermines federalism and the authority of individual States by forcing individuals and businesses in one State to conduct their farming, manufacturing, and production practices in a manner required by the laws of a different State.”
Kavanaugh warned that Prop 12 will likely serve as “a blueprint for other States” to follow, in nationalizing state laws, without the bother and expense of passing legislation through Congress. He noted states holding contrary opinions could now use their own laws, or band together with other states, to respond to California’s aggression, in kind.
“California’s law thus may foreshadow a new era where States shutter their markets to goods produced in a way that offends their moral or policy preferences - and in doing so, effectively force other States to regulate in accordance with those idiosyncratic state demands,” Kavanaugh wrote. “That is not the Constitution the Framers adopted in Philadelphia in 1787.”